Western Watersheds Project v. Michael
2017 WL 3908875, 869 F.3d 1189, 47 Envtl. L. Rep. (Envtl. Law Inst.) 20110 (2017)
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Rule of Law:
The creation and dissemination of information, especially when used for public discourse and policy formation, constitutes protected speech under the First Amendment, and state statutes imposing heightened penalties on such activities, even when touching upon unauthorized access to private property to reach public land, are subject to constitutional scrutiny.
Facts:
- Wyoming has long-standing general criminal and civil laws prohibiting trespass, which include specific knowledge requirements and lesser penalties than the challenged statutes.
- In 2015, Wyoming enacted statutes making it illegal to enter 'open land for the purpose of collecting resource data' without permission, defining 'resource data' broadly and 'collect' as taking samples/photos or preserving information intended for submission to government agencies.
- These 2015 statutes imposed heightened penalties, including longer imprisonment and higher fines for criminal offenses, and attorneys' fees for civil cases, compared to general trespass laws, and prohibited the use of illegally collected data in agency proceedings.
- In 2016, Wyoming amended the statutes, eliminating the 'open lands' reference and penalizing unauthorized entry onto private land to collect data, collecting data on private land after entry, or crossing private land to access adjacent public land where data is collected.
- The 2016 amendments also removed the requirement that resource data be submitted to government agencies, broadening 'collect' to include acquiring, gathering, photographing, or otherwise preserving information in any form, coupled with recording its geographical coordinates.
- Organizations such as the Western Watersheds Project and Natural Resource Defense Council engage in activities like collecting water quality data (including GPS locations) for the Wyoming Department of Environmental Quality and submitting geo-tagged photographs to the U.S. Fish and Wildlife Service, which are essential for their environmental advocacy and participation in public policy under federal laws.
Procedural Posture:
- Plaintiffs (including Western Watersheds Project, National Press Photographers Association, Natural Resource Defense Council, People for the Ethical Treatment of Animals Inc., and Center for Food Safety) filed suit in the United States District Court for the District of Wyoming, challenging the 2015 statutes on grounds including violations of the First Amendment, Equal Protection Clause, and federal preemption.
- Defendants moved to dismiss the plaintiffs' complaint.
- The district court granted in part and denied in part the defendants' motion to dismiss, holding that plaintiffs had stated plausible free speech, petition, and equal protection claims, but failed to state a preemption claim.
- Following Wyoming's amendment of the statutes in 2016, plaintiffs amended their complaint to challenge the new versions, re-alleging free speech and equal protection claims.
- Defendants again moved to dismiss the amended complaint.
- The district court granted the defendants' motion to dismiss in full, concluding that the revised statutes did not implicate protected speech.
- Western Watersheds Project, National Press Photographers Association, and Natural Resource Defense Council (Plaintiffs-Appellants) timely appealed the district court's decision to the Tenth Circuit Court of Appeals.
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Issue:
Does a state statute that imposes heightened civil and criminal penalties on individuals who cross private land without authorization to access adjacent public land where they collect resource data regulate protected speech under the First Amendment, thereby requiring constitutional scrutiny?
Opinions:
Majority - Lucero, Circuit Judge
Yes, the Wyoming statutes imposing heightened penalties on individuals who cross private land without authorization to access adjacent public land where they collect resource data regulate protected speech under the First Amendment, thereby requiring constitutional scrutiny. The court concluded that the statutes, specifically subsections (c), target the 'creation' of speech by imposing harsher penalties on those who gather resource data on public land. The fact that the statutes implicate initial access to private property does not exempt them from First Amendment review, especially given Wyoming's existing, less severe general trespass laws. The court distinguished the case from precedents concerning speech on private property by noting that the challenged provisions regulate activity on public land, after crossing private land. The expansive definitions of 'resource data' and 'collect' encompass actions like taking water samples, notes, audio recordings, or photographs coupled with recording geographical coordinates, which are integral to the plaintiffs' environmental advocacy and public policy contributions. Citing Sorrell v. IMS Health Inc., the court affirmed that 'the creation and dissemination of information are speech within the meaning of the First Amendment' and warned against allowing governments to 'bypass the Constitution by simply proceed[ing] upstream and dam[ming] the source' of speech. The court further drew parallels to other circuits' rulings protecting the recording of officials' conduct in public, reinforcing that the act of creating speech is protected. It clarified that this situation differs from cases like Zemel v. Rusk, where a generally applicable law incidentally restricted information flow; here, the statutes directly target the creation of speech through differential treatment. The court remanded the case for the district court to determine the appropriate level of scrutiny and whether the statutes survive such review.
Analysis:
This case significantly reaffirms that the act of creating information for public discourse is a core First Amendment activity, preventing states from imposing disproportionately severe penalties on such actions. By focusing on the 'creation of speech,' the Tenth Circuit extends constitutional protection to data collection, photography, and note-taking when performed for advocacy or public interest purposes, even if preceded by a trespass to access public lands. The ruling puts states on notice that laws resembling 'ag-gag' legislation, which aim to deter information gathering critical of certain industries or practices, will face stringent constitutional review. It underscores the importance of information access for informed public debate and governmental oversight.
